949] THE SPELUNCEAN EXPLORERS 625 The true reconciliation of the excuse of self-defense with the statute making it a crime to kill another is to be found in the following line of reasoning.One of the principal objects under- lying any criminal legislation is that of deterring men from crime. Now it is apparent that if it were declared to be the law that a killing in self-defense is murder such a rule could not operate in a deterrent manner.A man whose life is threatened will repel his aggressor,whatever the law may say.Looking therefore to the broad purposes of criminal legislation,we may safely declare that this statute was not intended to apply to cases of self-defense. When the rationale of the excuse of self-defense is thus ex- plained,it becomes apparent that precisely the same reasoning is applicable to the case at bar.If in the future any group of men ever find themselves in the tragic predicament of these defendants, we may be sure that their decision whether to live or die will not be controlled by the contents of our criminal code.Accordingly, if we read this statute intelligently it is apparent that it does not apply to this case.The withdrawal of this situation from the effect of the statute is justified by precisely the same considera- tions that were applied by our predecessors in office centuries ago to the case of self-defense. There are those who raise the cry of judicial usurpation when- ever a court,after analyzing the purpose of a statute,gives to its words a meaning that is not at once apparent to the casual reader who has not studied the statute closely or examined the objectives it seeks to attain.Let me say emphatically that I accept without reservation the proposition that this Court is bound by the statutes of our Commonwealth and that it exercises its powers in subservience to the duly expressed will of the Chamber of Representatives.The line of reasoning I have applied above raises no question of fidelity to enacted law,though it may possibly raise a question of the distinction between intelligent and unintelligent fidelity.No superior wants a servant who lacks the capacity to read between the lines.The stupidest housemaid knows that when she is told "to peel the soup and skim the pota- toes"her mistress does not mean what she says.She also knows that when her master tells her to "drop everything and come running"he has overlooked the possibility that she is at the moment in the act of rescuing the baby from the rain barrel. Surely we have a right to expect the same modicum of intelligence HeinOnline--62 Harv.L.Rev.625 1948-1949
THE SPELUNCEAN EXPLORERS The true reconciliation of the excuse of self-defense with the statute making it a crime to kill another is to be found in the following line of reasoning. One of the principal objects underlying any criminal legislation is that of deterring men from crime. Now it is apparent that if it were declared to be the law that a killing in self-defense is murder such a rule could not operate in a deterrent manner. A man whose life is threatened will repel his aggressor, whatever the law may say. Looking therefore to the broad purposes of criminal legislation, we may safely declare that this statute was not intended to apply to cases of self-defense. When the rationale of the excuse of self-defense is thus explained, it becomes apparent that precisely the same reasoning is applicable to the case at bar. If in the future any group of men ever find themselves in the tragic predicament of these defendants, we may be sure that their decision whether to live or die will not be controlled by the contents of our criminal code. Accordingly, if we read this statute intelligently it is apparent that it does not apply to this case. The withdrawal of this situation from the effect of the statute is justified by precisely the same considerations that were applied by our predecessors in office centuries ago to the case of self-defense. There are those who raise the cry of judicial usurpation whenever a court, after analyzing the purpose of a statute, gives to its words a meaning that is not at once apparent to the casual reader who has not studied the statute closely or examined the objectives it seeks to attain. Let me say emphatically that I accept without reservation the proposition that this Court is bound by the statutes of our Commonwealth and that it exercises its powers in subservience to the duly expressed will of the Chamber of Representatives. The line of reasoning I have applied above raises no question of fidelity to enacted law, though it may possibly raise a question of the distinction between intelligent and unintelligent fidelity. No superior wants a servant who lacks the capacity to read between the lines. The stupidest housemaid knows that when she is told "to peel the soup and skim the potatoes" her mistress does not mean what she says. She also knows that when her master tells her to "drop everything and come running" he has overlooked the possibility that she is at the moment in the act of rescuing the baby from the rain barrel. Surely we have a right to expect the same modicum of intelligence 19491 HeinOnline -- 62 Harv. L. Rev. 625 1948-1949
626 HARVARD LAW REVIEW [Vol.62 from the judiciary.The correction of obvious legislative errors or oversights is not to supplant the legislative will,but to make that will effective. I therefore conclude that on any aspect under which this case may be viewed these defendants are innocent of the crime of murdering Roger Whetmore,and that the conviction should be set aside. TATTING,J.In the discharge of my duties as a justice of this Court,I am usually able to dissociate the emotional and intellec- tual sides of my reactions,and to decide the case before me en- tirely on the basis of the latter.In passing on this tragic case I find that my usual resources fail me.On the emotional side I find myself torn between sympathy for these men and a feeling of abhorrence and disgust at the monstrous act they committed. I had hoped that I would be able to put these contradictory emotions to one side as irrelevant,and to decide the case on the basis of a convincing and logical demonstration of the result de- manded by our law.Unfortunately,this deliverance has not been vouchsafed me. As I analyze the opinion just rendered by my brother Foster, I find that it is shot through with contradictions and fallacies. Let us begin with his first proposition:these men were not sub- ject to our law because they were not in a "state of civil society" but in a "state of nature."I am not clear why this is so,whether it is because of the thickness of the rock that imprisoned them, or because they were hungry,or because they had set up a "new charter of government"by which the usual rules of law were to be supplanted by a throw of the dice.Other difficulties intrude themselves.If these men passed from the jurisdiction of our law to that of "the law of nature,"at what moment did this occur? Was it when the entrance to the cave was blocked,or when the threat of starvation reached a certain undefined degree of in- tensity,or when the agreement for the throwing of the dice was made?These uncertainties in the doctrine proposed by my brother are capable of producing real difficulties.Suppose,for example, one of these men had had his twenty-first birthday while he was imprisoned within the mountain.On what date would we have to consider that he had attained his majority-when he reached the age of twenty-one,at which time he was,by hypothesis,re- moved from the effects of our law,or only when he was released HeinOnline--62 Harv.L.Rev.626 1948-1949
HARVARD LAW REVIEW from the judiciary. The correction of obvious legislative erkors or oversights is not to supplant the legislative will, but to make that will effective. I therefore conclude that on any aspect under which this case may be viewed these defendants are innocent of the crime of murdering Roger Whetmore, and that the conviction should be set aside. TATTING, J. In the discharge of my duties as a justice of this Court, I am usually able to dissociate the emotional and intellectual sides of my reactions, and to decide the case before me entirely on the basis of the latter. In passing on this tragic case I find that my usual resources fail me. On the emotional side I find myself torn between sympathy for these men and a feeling of abhorrence and disgust at the monstrous act they committed. I had hoped that I would be able to put these contradictory emotions to one side as irrelevant, and to decide the case on the basis of a convincing and logical demonstration of the result demanded by our law. Unfortunately, this deliverance has not been vouchsafed me. As I analyze the opinion just rendered by my brother Foster, I find that it is shot through with contradictions and fallacies. Let us begin with his first proposition: these men were not subject to our law because they were not in a "state of civil society" but in a "state of nature." I am not clear why this is so, whether it is because of the thickness of the rock that imprisoned them, or because they were hungry, or because they had set up a "new charter of government" by which the usual rules of law were to be supplanted by a throw of the dice. Other difficulties intrude themselves. If these men passed from the jurisdiction of our law to that of "the law of nature," at what moment did this occur? Was it when the entrance to the cave was blocked, or when the threat of starvation reached a certain undefined degree of intensity, or when the agreement for the throwing of the dice was made? These uncertainties in the doctrine proposed by my brother are capable of producing real difficulties. Suppose, for example, one of these men had had his twenty-first birthday while he was imprisoned within the mountain. On what date would we have to consider that he had attained his majority -when he reached the age of twenty-one, at which time he was, by hypothesis, removed from the effects of our law, or only when he was released [Vol. 62 HeinOnline -- 62 Harv. L. Rev. 626 1948-1949